Saturday, November 17, 2012

RIGHT OF REPLY?

Had not the debate on the Freedom of Information Bill been
aborted last Tuesday, it might have taken up the issue of “right of
apply.” Actually, this is not the
first time that the right of reply has reached Congress. In 2009 a bill on the subject sought
preferential treatment.
Essentially the bill said that “all persons who are accused directly or
indirectly of any crime or offense or are criticized by innuendo, suggestion or
rumor for any lapse in behavior in public or private life shall have the right
to reply to the charges published in newspapers and other publications or to
criticisms aired over radio, television, website or through any electrical
device.” It did not become law and no case went to court.

Something analogous, however, did reach the Philippine Court.
Pursuant to its constitutional power to regulate media during election periods,
the Comelec passed a resolution regarding free time or space in media for
candidates. The resolution was not
a masterpiece of clarity so that it was not clear whether it was meant to
compel media to make time or space available or whether the Comelec was merely making a recommendation to
media. At any rate, when the
Supreme Court took it up in 1995, it said that, if understood as mandatory, it
would amount to taking of private property without just compensation.

The Court could also have taken it up as a speech issue because
freedom speech means both the right to speak and not to speak. Political ads,
after all, are speech. But the
Court chose to approach it as an illicit act of property high jacking.

Should the right of reply become part of the Freedom of
Information Bill or of the Cybercrime Law, it will be a good issue to take up
as speech and not just as illicit taking of property. And since we follow the American tradition on speech
jurisprudence, we will be looking for American cases on the subject. Fortunately there is one that is ready
at hand that takes up both sides of the debate.

Miami Herald v Tornillo
(1974) involved a Florida law on the right of reply. Candidate Tornillo, relying on the Florida law, demanded
that the Miami Herald print his reply to the editorial comments of the Herald. But the Florida law was declared
unconstitutional.

It is interesting that the Supreme Court took pains to summarize
the arguments brought up in favor of a right of reply. They are worth recalling if only to see
if they find resonance in our condition.

Essentially the argument in favor of a right of reply rested on
the historical premise that "at the time the First Amendment to the
Constitution was ratified in 1791 as part of our Bill of Rights the press was
broadly representative of the people it was serving and collectively presented
a broad range of opinions to readers. Entry into publishing was inexpensive . .
. A true marketplace of ideas existed in which there was relatively easy access
to the channels of communication."

However, the argument ran, because of changed circumstances
newspapers had ceased to be "a true marketplace of ideas." "The result of these vast changes
has been to place in a few hands the power to inform the American people and
shape public opinion."

Proponents also sought support from certain dicta of the Supreme
Court suggesting that the guarantee of a free press also imposed obligations on
owners of newspapers. The First
Amendment, they quoted, "rests on the assumption that the widest possible
dissemination of information from diverse and antagonistic sources is essential
to the welfare of the public."
Cited also was the dictum that spoke of "a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open."

In the end, however, the Court was deterred by problems of
implementation. "However much validity may be found in these arguments, at
each point the implementation of a remedy such as an enforceable right of
access necessarily calls for some mechanism, either governmental or consensual.
If it is governmental
coercion, this at once brings about a confrontation with the express provisions
of the First Amendment and the judicial gloss on that Amendment developed over
the years."

The Court also said: "The power of a privately owned
newspaper to advance its own political, social, and economic views is bounded
by only two factors: first, the acceptance of a sufficient number of readers -
and hence advertisers - to assure financial success; and, second, the
journalistic integrity of its editors and publishers. . . . The clear
implication has been that any such a compulsion to publish that which ‘reason’
tells them should not be published is unconstitutional. A responsible press is
an undoubtedly desirable goal, but press responsibility is not mandated by the
Constitution and like many other virtues it cannot be legislated."

I might also add that a right of reply in the context of current
Philippine society today will not really add anything to what people who pay attention to media already know. Newspaper readers, radio listeners and
television viewers already are bombarded with biased reporting, some straight
and others biased, and opposing opinions of columnists. The strong temptation in fact is to
ignore them or sometimes to go over media, just for fun, as a vacuum cleaner
would -- only to look for dirt.

2 comments:

Thank you for this thoughtful review of Right of Reply pros and cons. The press in the Philippines is remarkably varied and open. It is not shy. Right of Reply would make it shy and that is not a good thing. I fear that those who would advocate these kinds of authoritarian bindings on the press do not have a grasp of how a press, with information to work from, can energize a modern, vibrant, productive nation. What they ought to be working on is FOI to give the press something objective to work from. Freeing the press, rather than constraining it.

Only criminals demand the passing of RoRB, why would that be of concern if one does commit questionable or criminal acts? Only in the Philippines so they say but what amazes even more is how they openly promote shamelessly passage of a law that is so obviously an abuse of their legislative power that benefits no one but themselves, the dirty traditional politicians or TRAPOs.